Ryan J. Suto's Blog

09 June 2013

You say you want a revolution. Well you know, that’s not gonna happen soon.

There’s been a lot of outrage over the recent revelations of NSA surveillance of US citizens with no reasonable suspicion of any particular individual of any particular wrongdoing. And there should be. In 2008 Obama presented himself as the anti-Bush, but between Guantanamo, drones, and domestic surveillance, he’s possibly more Bush than Bush!

While some are grappling with whether the program is legal, I view that as simply not the point. That’s not to say that assessing the legality of governmental action isn’t important, of course. But there are at least three standards by which a government action can be judged: legal, Constitution, and acceptable. Regardless of whether the program is legal, it’s simply not acceptable—and I’m very certain a majority of Americans would agree with my poorly articulated argument here. (I’ll leave the Constitutional argument for when I’m not studying for the bar exam and have sufficient time to go through the relevant case law in order to make a reasoned analysis. But our Colbert gut tells us this doesn’t feel Constitutional within the spirit of the 4th Amendment.)

I’d venture to guess that there are several areas of dissatisfaction a majority of Americans have with the federal government, which has been unresponsive to public opinion. But this grievance, I think, crosses party lines most easily. Because of the gradual decline of civil liberties since the passage of the USA PATRIOT Act—which has continued regardless of the partisanship of either the legislative or executive branches—many want  drastic change in our federal government’s power to unilaterally collect information on citizens without individual suspicion. Such change can either occur inside the system or outside the system. The problem is that to work within the system, we must repeal all these laws and court decisions. This would need to be an act of Congress to be either signed by the president or popular enough to override a veto. (Technically a Constitutional amendment is available, but that is harder still). But we’ve had the problem, best exemplified by Obama himself, of electing people who say they’re against such programs, but vote for them anyway.  Namely, any libertarian, progressive, or small-government conservative should not be supportive of such programs on ideological grounds. And yet  here we are.

So what’s the other option? A full-scale change of the status quo—that is to say, work from ‘outside the system’. Yes, some voices have asked about a new American Revolution or an American Spring. For better or worse, that’s not going to happen anytime soon. The governmental transitions academic literature tell us that GDP-per-capita is one of most strongly correlated variables to whether transitions actually occur. That is to say that wealth is a factor in whether full-scale revolt can actually lead to change. Why? Simply because extra-systemic change, especially full-scale revolt, questions the whole system itself. We know that when you've got nothing, you've got nothing to lose, but most of us have something, and so we feel we have something to lose in the event of real revolution. Sure, if you’re unemployed, have broken spirits, or have more debt than you can ever hope to repay, you’re fixin’ for  a revolution—because you might feel you have more to gain from a possible victory than you have  to lose  from either a victory  or defeat. But when you own property, or have a family to feed or have a pension, often that status quo protects you more than exposes you to risk. This is the force of moderation. The idea of being jailed for a short time as a political activist might be romantic to those with few responsibilities, but for many that means no food on the table for their children. 

As such, only when a plurality of Americans feels there's more to gain in overthrowing the status quo than to lose from the attempt, will something extra-systemic actually happen. We’re a far road from Tahrir Square. Evidence of this assertion being true might be as recent as the Tea Party and #OccupyWallSt movements. While there are many other important variables I won’t consider here, note that the Tea Party worked within the structures of governance, whereas #OccupyWallSt questioned them to the core. One was strategic, the other radical. Which has had more effect on American politics, I think, is clear. (Pssst! The Tea Party.)

The tragedy, of course, is that we have been jaded by the idea of change from within. That was the actual mantra of Obama, and now he’s the exact thing we want to change. 

08 June 2013

The Future of the Authorization of the Use of Force

This post earned an honorable mention in the Center for International Policy's Rethinking National Security blog contest. It will discuss the authorization of the use  of U.S. force beyond our nation's borders. While this issue doesn't often explicitly grab headlines, it is at the heart of many power struggles, political debates, and legal battles in Washington.

The U.S. Constitution first established a balance of power in this area. Art. I, Sec. 8 states, “The Congress shall have Power... To declare War...” This statement is supplemented with the later statement in Art. II, Sec. 2 that, “The President shall be Commander in Chief of the Army and Navy of the United States...” which is supported by the president’s authority to take care that the laws of the United States are faithfully executed. These lines are where power struggles between Congress and the President originate over the authority to use military force. It is clear that at a minimum the majority of the Constitutional Framers wanted to ensure that no individual could bring the United States to war.

However, history and circumstance have given a broad mandate of power with respect to foreign relations to the president; Congress began to become powerless in the realm of the external use of US force. During the Vietnam War public opinion ran against the foreign affairs preferences of the executive. This led to Congress passing the War Powers Resolution in 1973. This legislation requires the president to “consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” Moreover, the president must notify Congress with the details of military action within 48 hours of the commencement of hostilities. Hostilities cannot last longer than sixty days without express consent of Congress, with a possible extension of thirty more days. The intent of this legislation was to require Congressional approval to military actions abroad where large numbers of American forces are in harm’s way.

This background shows a historical movement away from the formally declared ‘perfect wars’ of the past between states which existed in a dichotomous paradigm of foreign relations: war or peace. The reality of modern warfare is now moving toward a more subtle paradigm, which doesn’t fit neatly into categories of war or peace, but instead creates a continuum from total war to total peace, and which often involves non-state actors. The most recent large-scale U.S. military actions have been executed pursuant to specific enabling Authorizations for the Use of Military Force (AUMFs). However, many smaller actions have no explicit Congressional authorization. For example, the American involvement in the N.A.T.O.-led military intervention in Libya in 2011 did not result from any Congressional action. Legitimate arguments have been made regarding not only the Constitutionality of such an action, but also the wisdom of the unilateral authorization of the use of force abroad by one branch of the government.

This modern patchwork approach of legislation, utilizing the War Powers Resolution, various Court holdings, and AUMFs, does not offer predictable guidelines for any of the branches of government for creating policy, determining action possibilities, or judging either policy or action. At present the use of force is no longer a property of war but a tool of foreign policy. And in the post-9/11 environment of a desperate need for security, the executive branch has been given all the power it could desire in the realm of military action and national security.

As the present AUMFs fade into history, America continues to face challenges. Questions of the use drones, the use of force toward new terrorist organizations, humanitarian interventions in conflicts such as the one present in Syria, and resource protection in the face of global climate change will dominate the future of U.S. foreign policy and military action. All of these instances undoubtedly include the use of force, but fall short of formally declared war. However, the grand structures of law—the U.S. Constitution, The Hague Conventions, and the UN Charter—continue to only recognize the black and white dichotomy between war and non-war which has not been relevant since WWII. The problem that has needed to be solved for almost fifty years now is that there needs to be a comprehensive overhaul of how we use force beyond our borders. These challenges would be best addressed by a uniform and informed national security policy. Such a uniform policy must be created to maintain citizen oversight over governmental action while continuing to protect our nation from the evolving threats of the future.

A categorical policy of the use of force should include measurable variables such as: theatre, resources, time, possible ‘collateral damage’, and mission. Different stages of force application would have different requirements within each category—with perhaps ‘war’ having the most flexible standards. While writing a law is above my job description and pay grade as a law student, the lowest category  could be something like this: Category I: 1 country involved (must go to Congress to expand), no more than 1,000 US troops mobilized or $100 million used, completed within 3 months, no congressional advice or consent required to begin. As I have no military experience I fully recognize that these numeric limitations may have little bearing on reality, but I’m merely trying to illustrate the concept. The last category would just be war, where a full Congressional vote is needed. The WPR has a similar idea, but has too few options and is wholly too vague. At times law must be vague to allow flexibility, but I feel the past fifty years of foreign relations shows that flexibility has become too great to allow for predictability or constitutionally required consent of both branches.

While of course this is possibly unconstitutional, the Constitution specifically erects shared powers of war and war making. This is merely updating that sharing. In this context it remains important to understand the values and reasoning behind our Constitutional system: the president must have the ability to act quickly when needed, and Congress must agree to large-scale actions on behalf of the American people and to consent to the use of their money. Unfortunately law and policy change like a punctuated equilibrium—with very few punctuations. Moreover, Americans are generally afraid of drastic policy change, and thus won’t demand wholesale reform in these areas. This is partly why the Constitution has been amended so few times. However, this is a deeply important issue in both constitutional law and national security policy. It is my hope that the conversation on this topic continues to evolve. 

Carlos Arredondo: Boston Marathon Attendee Came to Victims' Rescue

This post was written for PolicyMic and can be found here

“You watch the videos of the carnage and there are people running TOWARDS the destruction to help out.” – Patton Oswalt
Much has been written about Carlos Arredondo, "Boston’s Cowboy," who has been ubiquitous in photographs and videos from yesterday’s tragic terrorist attack. But his story deserves to be retold.
Born in Costa Rica, Carlos came to America a self-employed handyman. A father of two, his oldest son, Alexander, joined the Marines because he was "Too poor to go to college," his stepmother stated. In 2004 Alexander was killed in Iraq at 20 years of age. Distraught, Carlos and his wife became ardent peace activists. They wished to spare other families the tragedy that had befallen them. At present, 6,648Americans have died in Iraq and Afghanistan.
But the wars have taken lives at home, as well. In late 2011 his remaining son, Brian, who never fully recovered from the loss of his brother, committed suicide. While Brian never served in the military, the effect of war on families has been heavy during the past decade. Eighteen veterans a day commit suicide. Less is known about the families they leave behind. Facing yet another unimaginably tragic loss, Carlos and Melida re-directed their energies to the cause of suicide awareness, especially those which are military-related.
While Carlos is also a Red Cross volunteer, he was at the Boston Marathon Monday primarily to support John Mixon, who was running in Alexander’s honor. As soon as the bombs exploded, Carlos ran toward the victims to help in any way. He can be seen here (use discretion) applying a tourniquet technique in order to save a victim’s leg. In an interview where he is clearly in shock and still covered in the blood of those he saved, he describes his terrifying experience.
The story of Carlos Arredondo has been inextricably linked to political questions Americans have been wrestling with for years: immigration, education costs, war, mental health, and the recent cases of mass violence. Because of this, many of us can find a personal connection to the Arredondo family. We can all put ourselves in their shoes. This is why it is powerful.
But why it is important is because Carlos displays the amazing resiliency of the human spirit to keep fighting. He has not shied in the face of adversity and tragedy. Instead, he and Melida have worked for nearly a decade to try to make this world a safer place. And yesterday Carlos unflinchingly put himself in harm’s way to save the victims of senseless violence.
Soon our nation will go through yet another round of mourning, followed by finger-pointing and political deadlock. While this is going on here in Washington, remember the story of the Arredondo family. That same human resilience and heroism Carlos has shown runs through each and every one of us. Ask yourself, how can I make this world a better place? While you may feel small, every individual can have a part in mending the wounds of our society.
And trust me, we are going to need all the help we can get. 

What is an Executive Order And is It Constitutional?

This post was written for PolicMic and can be found here

The National Archives describes executive orders as “official documents, numbered consecutively, through which the President of the United States manages the operations of the Federal Government.” These documents are largely constitutional and uncontroversial. Despite President Obama’s relatively infrequentuse of executive orders, they have become a salient topic lately, and thus warrant more explanation.
There are two relevant clauses in the U.S. Constitution regarding executive orders: Art. I Sec. 1 and Art. II Sec. 3. The first states, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The second clause states that the president “shall take Care that the Laws be faithfully executed.” Or, put more simply, Congress makes the laws and the president enforces the laws.
Thus, the deeply-rooted American concept of "separation of powers" is what drives the controversy of executive orders. While the president cannot "legislate," he/she must be able to control his/her branch of the government: if Congress micromanaged the executive branch, that would encroach on presidential power, and thus violate the separation of powers as much as presidential legislation would. This is the constitutional tightrope that executive orders must walk: they cannot constitute "legislation," but must allow the president to effectively run the executive branch of the government so that he/she can ensure the laws are faithfully executed.
Executive orders began as informal administrative orders, but truly took on a new role under President Franklin D. Roosevelt, who issued over 3,000 of them. In 1952 President Truman issued an executive order to seize domestic steel mills during the Korean War. This action was challenged at the Supreme Court asYoungstown Sheet & Tube Co. v. Sawyer, the first major ruling on the topic (for a more nuanced and modern case on executive orders and separation of powers, see: INS v. Chadha). In Youngstown the Supreme Court held that there was no authority for the president to issue this order under the Constitution. Essentially, because there was no law on point for the president to execute, the action of authorizing the seizing domestic steel mills constituted legislation. Since this case presidents generally cite the laws they seek to execute or enforce when issuing their executive orders to be in compliance with the Youngstowndecision. It is important to note that since 9/11 the presidency has expanded in power — generally with the consent of Congress. This expansion of political and legal clout has given rise to reasonable concerns of the abuse of the executive order as a way to circumvent the legislative process.
While I am not asserting the legality of any particular executive order, I hope to have shown that the practice is one which has been exercised by every president and serves legitimate Constitutional goals. But like almost any governmental power, the possibility of abuse remains high. While we must remain wary, we must have proper historical and constitutional context, as well.